Do you legally own that tattoo you just got?

Bizarre, NakedLaw, News, Rights

Maybe you designed your own tattoo. Or maybe your skin art is an homage to a famous painting. No matter—if you didn’t actually ink yourself, it turns out you might not own the copyright to your tattoo.

Sounds crazy, right? One might think a tattoo, something that is clearly a permanent part of your body, should remain your domain alone, but a series of court cases in recent years have sought to upend that assumption.

When actors and avatars copy the tat

In 2011, the man who tattooed Mike Tyson with his hard-to-miss facial tattoo sued Warner Bros. Entertainment in an effort to stop the release of The Hangover: Part II in which Ed Helms’ character is sporting an almost identical tattoo. Tattoo artist S. Victor Whitmill called Tyson’s tattoo design “one of the most distinctive tattoos in the nation.” When Whitmill created the original tattoo, Tyson signed a release that granted Whitmill rights in the work, and Whitmill also registered the copyright for the tattoo. The case eventually settled for undisclosed terms, so there was no definitive ruling about whether or not there was copyright infringement.

The Tyson case seemed to set the stage for other tattoo copyright infringement cases featuring notably tattooed athletes:

  • Take-Two Interactive Software, the animators who created the NBA 2K video game featuring LeBron James, Kobe Bryant, Eric Bledsoe, and others, were sued for copyright infringement because the animators recreated the men’s tattoos. But U.S. District Judge Laura Taylor Swain said the issue brought up by the tattoo designers, Solid Oak Sketches, was without merit and dismissed the case because, “In order to obtain statutory damages and attorneys’ fees, a plaintiff must have registered its copyright prior to the alleged infringement.”

Solid Oak registered their design with the U.S. Copyright Office in 2015, but the alleged infringement, according to Solid Oak, began in 2013. Solid Oak can, however, pursue actual damages because of the depiction of their work in the NBA 2K16 game, and that pretrial conference is set for early November 2016.

  • In another copyright infringement case involving tattoo artist Christopher Escobedo, the lion tattoo he inked on professional mixed martial artist Carlos Condit became a subject of dispute when the tattoo was recreated in the UFC Undisputed video game by videogame publisher THQ. Escobedo was awarded a $22,500 settlement, even though THQ was in bankruptcy, but he then appealed and settled for a confidential amount, according to his attorney, Maria Crimi Speth, with Jaburg Wilk in Phoenix.

Getting tattooed? Ask for a copyright transfer

Those are all cases in which a tattoo was used in virtual form, for profit. But theoretically, having the tattoo on your physical body doesn’t indemnify you. Whether a work of art is on a canvas, a wall, or a body, a copyrighted work cannot be disputed. “Copyright law gives authors certain exclusive rights, including the rights to reproduce and authorize others to reproduce their works,” says Marc P. Misthal, copyright attorney with Gottlieb, Rackman & Reisman, P.C. in Manhattan. “To be eligible for copyright protection, a work must be original and fixed in a tangible medium.” And when it comes to tattoos, a person is a tangible medium.

The validity of a tattoo artist’s copyright claims will always be in question, however, when a potential infringement case is on the table. After all, is the display of their original work hurting anyone? Are the damages they’re seeking purely financial in nature?

“If the artwork is original, the tattoo artist owns a copyright, but is subject to implied limitations due to the nature of the ‘canvas’ on which it is placed,” says Gordon Firemark, entertainment and media lawyer in Los Angeles. “The big issue tends to be a question of whose permission is required to reproduce an image of the person who has the ink on his or her body.”

It may be implied that the tattoo artist is giving up rights to control the use of the tattoo, but unless this agreement is in writing, the artist has every right to object to certain uses of their work. “The tattoo artist grants an implied license [to the tattoo recipient] to display the image on their body, but since the license is implied, no one really knows the scope,” says Speth. “Can the tattooed person copy the image? Can the tattooed person license the image to someone else, like a computer game company or a sports broadcasting company? That’s where it gets tricky.”

If you’re just a regular Joe, you may think these copyright issues may not matter or apply to your life. But in today’s all-pervasive social media world, you never know. To be safe, “if you’re getting a tattoo, get a contract—in writing—transferring ownership of the copyright to you, or at least clearly defining what you may do with your tattoo,” says Firemark. “As a lawyer who represents film and TV producers and artists, I often recommend ‘clearing’ tattoos, and such contracts would greatly simplify things on that front. There is a strong Fair Use argument for incidental capture and reproduction of celebrity likenesses where tattoos are present.”

In short, consider getting some paperwork inked before getting yourself inked.

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